STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROBIN N HEMMETER, Employee

MERCY HEALTH SYSTEM CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10007056JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2010, and until 7 weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,515.00 to the Unemployment Reserve Fund.

Dated and Mailed April 20, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision which found that the employer discharged the employee for misconduct connected with her work for the employer. In Burch v. Sylvias Eagle Express Inc., (LIRC Dec. 11, 2001) the commission stated:

For unemployment insurance purposes, a layoff for an indefinite period severs the employment relationship, and subsequent employment is actually a new hire and new period of employment. The discipline cycle thus in effect starts over with the new period of hire, unless the employee is given a warning at the time of being placed back to work that prior warnings will be considered in invoking future discipline. (See, Pabst Brewing Co. v. DILHR and Pate, Circuit Court for Dane County, Case No. 149-159, August 9, 1976).

The employer's witness testified that when the employee returned to work she told the employee that she was at a critical point in the attendance policy and, since she had been suspended, if she was again tardy it would result in termination. Exhibit 1 contains a notation that the employee was reminded that she was close to termination. The employee first testified that when she returned to work she was not told that she was close to termination. On cross-examination the employee stated that she did not "remember" being told that but it was "possible" that she was. The ALJ found as a fact that the employee was reminded of the attendance policy and that she was close to termination. The credible evidence is that the employee was put on notice when she returned to work that her prior record would be considered in invoking future discipline.

The employee received ample warning that her tardiness was not acceptable. The employee received a verbal and written warning on May 21. Her employment was suspended for one day on June 9 because of her tardiness record. The employee asserted at the hearing that she was not late on May 25. The employer testified that her lead worker called her to report at 8:30 because the doctor she was working for did not start until 9:00. The ALJ findings do not reflect that he credited the employee's assertion.

After reviewing the record, the commission has found no reason to disturb the ALJ's findings or conclusions.

cc: Mercy Clinic East (Janesville, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2011/06/03